Kidnapping is morally evil — or maybe not

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The crime of kidnapping would appear to be a textbook example of what the law defines as moral turpitude, or a “readiness to do evil.” Consider the Lindbergh baby, or Jaycee Dugard, or the latest headline about some crazed hostage-taker.

Then again, consider a case cited Wednesday by the Ninth U.S. Circuit Court of Appeals in San Francisco in reaching the opposite conclusion. It involved a San Joaquin County man named Gonzalo Garibay whose 18-year-old niece was trying to leave her father’s home to live with her boyfriend and his family after accusing the father of abuse. One night the girl’s father saw her coming home from dinner, grabbed her by the arm and took her to a car driven by Garibay, his brother, who drove them to the father’s home. For that act, Garibay was convicted in 2010 of kidnapping his niece.

The court also cited a case stemming from a 1968 protest by black students over the reported abuse of an African American football player by a coach at what was then San Fernando Valley State College in suburban Los Angeles. The students entered an office and, according to court records, “marched” the athletic director and two teachers to the administration building about 700 yards away, with some pushing and shoving along the way. Nineteen students were convicted of kidnapping.

From those cases and others, the appeals court concluded that simple kidnapping — defined by state law as moving a person a substantial distance through “force or fear” — is not necessarily a crime of moral turpitude. That’s a critical distinction when an illegal immigrant is seeking permission to remain in the United States because of family hardship, permission that is unavailable to anyone who has committed a crime of moral turpitude.

While kidnapping is “a serious crime,” the court said, it does not require proof of injury to the victim, or a demand for ransom, or even an intent to cause fear, as cases like Garibay’s illustrate. Past rulings have determined that crimes like burglary and assault with a deadly weapon aren’t always crimes of moral turpitude, a category reserved for “truly unconscionable conduct” that “must offend the most fundamental moral values of society,” said Judge Stephen Reinhardt in the 3-0 decision. (It can be viewed here: www.ca9.uscourts.gov/datastore/opinions/2013/01/09/09-73756.pdf.)

The issue arose in the case of Javier Castrillon-Garcia, who entered the United States illegally from Mexico in 1989, when he was 19 or 20, according to his lawyer. He’s now a construction worker in Southern California and a married man with three children, all U.S. citizens.

Immigration officials sought to deport Castrillon-Garcia in 2007, and he applied for an exemption on the grounds that it would cause hardship to his family. But immigration courts ruled him ineligible because he had pleaded guilty to attempted kidnapping in 1992 and was placed on probation for three years.

Asked for details of the crime, attorney Gary Watt said he’s never seen them, and they were considered irrelevant by immigration judges, who ruled that any kidnapping offense made Castrillon-Garcia ineligible for relief from deportation. Wednesday’s ruling requires an immigration court to examine the facts of the attempted kidnapping case and decide whether the crime was actually one that showed a “readiness to do evil.” If not, Castrillon-Garcia can apply for a waiver that would let him stay in the U.S. with his family.

Watt, an appellate specialist, directs the Student Appellate Project at UC Hastings College of the Law in San Francisco and supervised the law students who presented the case to the appeals court. Although the ruling isn’t the last word in Castrillon-Garcia’s case, Watt said, it was “a big step toward justice.”